Can patents on crops and seeds live on through the generations? Seems likely.

In 1994, Monsanto patented a type of genetically modified soybean that was able to resist its Roundup herbicide. The company called the soybeans Roundup Ready, and the seeds grew wildly popular, and today, Roundup Ready soybeans account for more than 90 percent of soybeans sold in the US. The crop is "probably the most rapidly adopted technological advance in history," said Monsanto's lawyer, Seth Waxman, arguing the Bowman v. Monsanto case at the Supreme Court today.

Monsanto found itself before the court today because its control over subsequent generations of soybean crops is being challenged by a 75-year-old Indiana man who farms a relatively small plot of soybeans—just 300 acres of soybeans, corn, and wheat in all. “I’m not even big enough to be called a farmer," he told the New York Times, speaking for an interview in the run-up to his big day in court.

In a way, this case originated because Monsanto is a "victim" of its own success. Like many soybean farmers, Bowman plants two crops per year. He bought patented Monsanto seeds to plant his first crop. The second crop would be planted after the winter wheat crop, and would be more likely to fail. For this riskier crop of "wheat beans," Bowman didn't want to pay the high price for patented seeds, so he bought soybeans from a grain elevator, knowing they would be a mix of various grains. Buying from a grain elevator, he didn't have to sign the agreement Monsanto usually compels farmers to sign, agreeing not to re-plant future generations of seeds.

Still, since Monsanto beans are so ubiquitous, Bowman knew the great majority would be Roundup Ready. Bowman was able to go ahead and spray his crops with Roundup, knowing they would nearly all benefit from having the Roundup Ready traits.

That practice led to him being sued by Monsanto. Bowman was found to infringe Monsanto's patent, and ordered to pay more than $30,000; with costs and interest, that's grown to more than $84,000. Bowman's legal argument is that he's protected by the "first sale" doctrine, and that Monsanto's patent rights are exhausted after the first sale. But Monsanto said that Bowman was making a replica of its patented beans, which shouldn't be allowed for any generation of beans.

Reading a transcript of today's oral arguments, it's clear that Bowman is unlikely to be able to fight off Monsanto in this battle. The justices were almost universally skeptical of his argument that Monsanto was asking for a special rule or exception to patent law. Chief Justice John Roberts immediately picked up Monsanto's idea that its giant investment in Roundup Ready would be eviscerated if farmers like Bowman were able to propagate its patented crops.

"Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?" asked Roberts.

Justice Stephen Breyer, who is one of the justices most skeptical of broad patent rights historically, suggested that Bowman was allowed to create one generation of crops from the seeds—and that was it.

"One, you can't pick up those seeds that you've just bought and throw them in a child's face," said Breyer. "You can't do that because there's a law that says you can't do it. Now, there's another law that says you cannot make copies of a patented invention. And that law you have violated when you use it to make [another] generation, just as you have violated the law against assault were you to use it to commit an assault."

Justice Sonia Sotomayor suggested that patent "exhaustion" doesn't apply when it comes to technologies that can replicate themselves. "The Exhaustion Doctrine permits you to use the good that you buy," she said. "It never permits you to make another item from that item you bought."

The US government also weighed in on this case; it originally said the Supreme Court shouldn't take it, and then sided with Monsanto once the case got taken up anyhow. Melissa Sherry, the government's lawyer, told the court today that reducing a 20-year patent term to one sale in this case would make it "near impossible to recoup your investments," and that research dollars could go outside the US.

"That's a pretty horrible result, but let me give you another horrible result," said Justice Antonin Scalia, pushing back. "If we agree with you, farmers will not be able to do a second planting by simply getting the undifferentiated seeds from a grain elevator, because at least a few of those seeds will always be patented seeds, and no farmer could ever plant anything from a grain elevator," said Scalia. That would make it hard to plant a cheap crop commensurate with the risk, as Bowman had done.

But there was also testimony before the court that Bowman's practice of buying undifferentiated "bin run" seeds from a grain elevator, isn't accepted or commonplace. CHS Inc., the largest grain distributor in the US, said as much in its amicus brief [PDF] on the case. CHS contested Bowman's argument that using mixed grain from elevators as seeds for a new generation of plants is a typical practice; the business of seed-selling has higher profit margins, notes CHS, and requires sellers to follow seed labeling laws.

Justice Elena Kagan suggested that considering how dominant Roundup Ready seeds are in the market, a decision in Monsanto's favor "has the capacity to make infringers out of everybody."

Monsanto lawyer Waxman assured her that soybean crops can't be blown by the wind into other fields, so inadvertent infringement of that sort is unlikely to happen, and couldn't be enforced. And in any case, "size—that is, success—has never been thought and can't be thought to affect the contour of patent rights," said Waxman. If Monsanto controls how 90 percent of the nation's soybeans are grown, in other words, they earned it.

This case comes to the Supreme Court from the US Court of Appeals for the Federal Circuit, the nation's top patent court. Over the past several years, the Supreme Court has often stepped in to limit the power of patents, keeping the Federal Circuit in check. That doesn't appear likely to happen in this situation, however.

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I agree with Monsanto in this case - and not because they hire a lot of grads from my school. I think patents on unique genes (not found in nature) are just as patentable as software.

Look how software patents turned out. Patent trolls galore.

Patents like gene patents and software patents induce fear in farmers and software developers, respectively. It's this fear that they could be sued into oblivion that makes them not want to do anything to innovate. Why innovate when someone will come and sue you for everything you own or made from your product? I'm from Nebraska (lots of farming, btw) and farmers are like most independent software developers: they cannot afford to keep a good lawyer on retainer.

Remember, if farmers' costs to produce your food go up, your food costs go up. Farmers have to make a living, too, and farm equipment isn't cheap. My dad works as a warranty writer and deals with equipment that can easily cost quarter of a million dollars.

We've only just scratched the surface of genetic engineering, the possibilities are endless- crops that require less pesticides or fertilizer, crops that can tolerate salt or extreme climate, and more nutritious crops to name a few. This could be a huge boon to the economy of the entire world and the US could lead it.

However, to accomplish that, the genetic engineering companies need to be able to pay their bills, which means they need a realistic prospect of getting paid. If only the first person who buys the first seeds has to pay, and can thereafter replant and sell the crop at will, it will be impossible to support a vibrant genetic research program. Multi-generational patents are therefore essential. It's not a simple matter of calling people 'scum'- life is a little more nuanced my friend.

Remember, if farmers' costs to produce your food go up, your food costs go up. Farmers have to make a living, too, and farm equipment isn't cheap. My dad works as a warranty writer and deals with equipment that can easily cost quarter of a million dollars.

Also remember: A farmer is not going to use a product unless it makes him a net profit, be that GMO or pesticides. They're very smart, evidence-oriented people.

The fact that Roundup Ready crops were so quickly and widely adopted tells just how much benefit farmers got from them.

Soybeans are not major cross-pollinators, but corn is -- and you can bet this decision will apply to Roundup Ready corn. Corn is wind pollinated, cross-pollinates for miles. One major heirloom seed company (Baker Creek) has to reject 50% of their seed crop because it's contaminated by GMO corn, and it's getting worse ever year.

While this farmer is not particularly a sympathetic case since he wasn't attempting to avoid Round-Up Ready soy, Kagan is right -- everyone will automatically become an infringer soon. Which is, of course, exactly what biotech giants want.

It seems to me that Monsanto has genetically modified the bean but not adequately. If they have modified it to be resistant to the Roundup chemical, then their next step is to modify it so that it is not able to reproduce over multiple generations. Once they do that, then they have a bean that is worthy of being patentable.

Remember, if farmers' costs to produce your food go up, your food costs go up. Farmers have to make a living, too, and farm equipment isn't cheap. My dad works as a warranty writer and deals with equipment that can easily cost quarter of a million dollars.

Also remember: A farmer is not going to use a product unless it makes him a net profit, be that GMO or pesticides. They're very smart, evidence-oriented people.

The fact that Roundup Ready crops were so quickly and widely adopted tells just how much benefit farmers got from them.

That's true. However, farmers need crops that are resistant to herbicides so weeds don't drain the soil of nutrients so the crops can grow the best after the farmers use said herbicides. Unless your crop is resistant to the herbicides you are using, your crops are going to go the way of the weeds, and then you don't make a net profit. Therefore, most farmers are locked into having to buy gene-patented seeds so they can make the most money they can.

The thing is overuse of both roundup and the roundup ready crops have created the issue of super weeds that are totally resistant to roundup. We have done with crops the same thing we have done with antibiotics and are quickly backing ourselves into a corner. Much of it by using these crops not for food but for fuel. Its pretty short sighted but wildly profitable for companies like Monsanto. We seriously need to get back to proper crop rotations, but then farmers would lose out on subsidies, so there is no common sense on either side.

Patent the herbicide. Farmers tend to use a lot and therefore are less likely to have any at the end of the season. The genetic engineering companies make money and the farmers can reuse seeds and not have to worry about lawsuits like these.

The patent on the herbicide, glyphosate, ran out a long time ago. It's a powerful broad-spectrum herbicide that kills almost all plants. It was really only useful to farmers for completely sterilizing a field before planting until Monsanto developed a strain of soy and corn that's resistant to it, which is the invention in question.

That's true. However, farmers need crops that are resistant to herbicides so weeds don't drain the soil of nutrients so the crops can grow the best after the farmers use said herbicides. Unless your crop is resistant to the herbicides you are using, your crops are going to go the way of the weeds, and then you don't make a net profit. Therefore, most farmers are locked into having to buy gene-patented seeds so they can make the most money they can.

So you're saying because Round-up ready plants are the most profitable way to grow crops, this somehow "locks in" a farmer? I'm not sure what point you're trying to make.

Patent the herbicide. Farmers tend to use a lot and therefore are less likely to have any at the end of the season. The genetic engineering companies make money and the farmers can reuse seeds and not have to worry about lawsuits like these.

The patent on the herbicide, glyphosate, ran out a long time ago. It's a powerful broad-spectrum herbicide that kills almost all plants. It was really only useful to farmers for completely sterilizing a field before planting until Monsanto developed a strain of soy and corn that's resistant to it, which is the invention in question.

Yeah, it expired in 2000. However, it looks like weeds are gaining resistance to glyphosate in the same way we got MRSA.

What Monsanto can do now is come up with a new herbicide that does not have resistance (I know this is a lot of R&D, but you'll be able to patent the new herbicide) in the wild and a new gene that makes crops resistant to the new herbicide and bingo, new revenue flow.

That's true. However, farmers need crops that are resistant to herbicides so weeds don't drain the soil of nutrients so the crops can grow the best after the farmers use said herbicides. Unless your crop is resistant to the herbicides you are using, your crops are going to go the way of the weeds, and then you don't make a net profit. Therefore, most farmers are locked into having to buy gene-patented seeds so they can make the most money they can.

So you're saying because Round-up ready plants are the most profitable way to grow crops, this somehow "locks in" a farmer? I'm not sure what point you're trying to make.

The point I'm trying to make is that since farmers don't want weeds to drain the soil of nutrients for their crops they must buy herbicide (from Syngenta, Monsanto, etc.) and since herbicides kill both crops and weeds, you need to have crops that are resistant to the herbicide being used so you don't lose your valuable crop in the process.

The article talks an awful lot about how the farmer is making a copy of Monsanto's patented technology, but aren't the copies making themselves as a result of, you know, the normal life cycle of plants?Clearly, Monsanto is going after the wrong people, if that's the case. They should sue God - He's the one that made plants and their means of reproduce, which is an obvious incitement to infringement of intellectual property.

The article talks an awful lot about how the farmer is making a copy of Monsanto's patented technology, but aren't the copies making themselves as a result of, you know, the normal life cycle of plants?Clearly, Monsanto is going after the wrong people, if that's the case. They should sue God - he's the one that made plants and their means of reproduce, which is an obvious incitement to infringement of intellectual property.

From what I have been able to read about this case (a lot), Mr. Bowman bought undifferentiated soybeans from the local grain elevator and planted them. Knowing or suspecting that most of them were likely GMO progeny (Roundup Ready), he sprayed them with Roundup and harvested them. Some of the harvested seed was used to plant subsequent crops.

Scotus is going to struggle to split this baby. As Justice Scalia observed, ruling that the first generation progeny in the grain elevator is protected by patent will create a fair use problem that essentially gives the patent holder (Monsanto, in this case, but that's irrelevant) a legal claim over the use of what has historically been a commodity just because some of their patented technology might be present in some amount. The potential future ramifications are immense. Suppose a patent holder decides that since their GMO is loose in the general population (be it soybeans, salmon, flowers, sheep, or whatever), they are entitled to patent royalties on every sale of instances of that species because their patented genetic material is or might be present in some amount? The mind boggles.

I think there is hope that Scotus will rule the first generation progeny as unprotected. Monsanto can reasonably foresee that the progeny of their seeds will be distributed as part of the general population of that commodity and be used as a commodity and that part of the reasonable use of that commodity is that they might be planted.

The second generation progeny that Mr. Bowman used are another question entirely.

I would guess that the second generation progeny harvested from the first generation progeny will be ruled as protected due to one unique aspect of this particular case. Mr. Bowman's application of Roundup to his planted crop of "undifferentiated" seeds ensured that the only plants that survived would be the ones carrying the protected Roundup Ready (RR) gene. In effect, the selection process triggered by the application of Roundup caused a new instance of protected GMO to be produced.

I'm hoping that the first generation progeny is covered by exhaustion, because any other ruling will create a level of patent protection that will affect us in ways we can only guess at right now.

Tin foil hats implies delusional paranoia. It's not paranoia if it is actually happening, which the very fact this case exists proves that it does. This case is about patents on genes and that those patents are inexhaustible. Do you have the remotest idea of the implication of that or are we going to pretend genetic inheritance is imaginary? Oh wait, we can't do that because that is literally what this case is about.

Monsanto lawyer Waxman assured her that soybean crops can't be blown by the wind into other fields, so inadvertent infringement of that sort is unlikely to happen, and couldn't be enforced in any case.

Blatant lie. If the USSC sides with Monsanto here, it stands to reason that any cross pollination of crops and reuse of said seeds created inadvertent infringement and you can be DAMN sure Monsanto would enforce it.

I agree with Monsanto in this case - and not because they hire a lot of grads from my school. I think patents on unique genes (not found in nature) are just as patentable as software.

Not saying that the patent system isn't broken, but companies and people have a right to protect their intellectual property.

From the article at least I think this is much more valid than software patents, which tend to unpatentable subject matter obfuscated enough to be more or less incomprehensible. Roundup resistant soybeans *are* a clear invention (whether that's what the patent is on or something more general and whether it was obvious etc in light of previous work are separate questions, I have no idea in this case).

If there's a blanket agreement not to replant (and presumably not to sell to someone who will replant?) then it's pretty clear someone broke an agreement somewhere, albeit not necessarily the defendant here.

I agree with Monsanto in this case - and not because they hire a lot of grads from my school. I think patents on unique genes (not found in nature) are just as patentable as software.

Look how software patents turned out. Patent trolls galore.

Patents like gene patents and software patents induce fear in farmers and software developers, respectively. It's this fear that they could be sued into oblivion that makes them not want to do anything to innovate. Why innovate when someone will come and sue you for everything you own or made from your product? I'm from Nebraska (lots of farming, btw) and farmers are like most independent software developers: they cannot afford to keep a good lawyer on retainer.

Remember, if farmers' costs to produce your food go up, your food costs go up. Farmers have to make a living, too, and farm equipment isn't cheap. My dad works as a warranty writer and deals with equipment that can easily cost quarter of a million dollars.

Curious how you didn't quote the part of my comment where I said that the patent system is broken. There are things that can and should be done to fix it.

Your argument is quite the non sequitur. I don't see a legal argument in your comment. I see an emotional plea. I'm a software developer - please, tell me how I'm fearful of being sued into oblivion.

You want to do something useful? Become a lawyer. Start a legal defense fund like the EFF. You can call it the Frontier Foundation.

I think patents on unique genes (not found in nature) are just as patentable as software.

But it's also kind of like patenting a software virus and then suing the people you infect with it for using it without your permission

The article clearly states that Monsanto's own lawyers don't believe they'd be able to enforce something like that, but let me try to clear that up further.

I'm not a lawyer, but I'd say that they wouldn't have standing to sue. I can't jump in front of your car and sue you for running me over.

I think the point was that the Monsanto bean has become ubiquitous, and is now almost impossible to avoid. There are very definite threats to free markets going on here. (Not to mention threats to health and environment due to reliance on monoculture crops. Historically, that has proven to be rather disastrous.)

What does one do when one has NO PRACTICAL CHOICE but to use a particular company's product? We have antitrust laws against that, yes?

We've only just scratched the surface of genetic engineering, the possibilities are endless- crops that require less pesticides or fertilizer, crops that can tolerate salt or extreme climate, and more nutritious crops to name a few. This could be a huge boon to the economy of the entire world and the US could lead it.

However, to accomplish that, the genetic engineering companies need to be able to pay their bills, which means they need a realistic prospect of getting paid.

You're the one with the tin foil hat on here.

The entire problem with this situation, like many in tech and business, is that the outcome that represents "the greater good" has squat to do with making money. Monsanto is not a seed company. Monsanto is a POISON company. The seed they sell is just a means to increase demand for their poisonous chemicals. So they have ZERO motivation to do the things you would like to attribute to them.

The kind of outcome you are trying to associate with Monsanto is more applicable to actual farmers or agronomists from Universities.

From what I have been able to read about this case (a lot), Mr. Bowman bought undifferentiated soybeans from the local grain elevator and planted them. Knowing or suspecting that most of them were likely GMO progeny (Roundup Ready), he sprayed them with Roundup and harvested them. Some of the harvested seed was used to plant subsequent crops.

Scotus is going to struggle to split this baby. As Justice Scalia observed, ruling that the first generation progeny in the grain elevator is protected by patent will create a fair use problem that essentially gives the patent holder (Monsanto, in this case, but that's irrelevant) a legal claim over the use of what has historically been a commodity just because some of their patented technology might be present in some amount. The potential future ramifications are immense. Suppose a patent holder decides that since their GMO is loose in the general population (be it soybeans, salmon, flowers, sheep, or whatever), they are entitled to patent royalties on every sale of instances of that species because their patented genetic material is or might be present in some amount? The mind boggles.

I think there is hope that Scotus will rule the first generation progeny as unprotected. Monsanto can reasonably foresee that the progeny of their seeds will be distributed as part of the general population of that commodity and be used as a commodity and that part of the reasonable use of that commodity is that they might be planted.

The second generation progeny that Mr. Bowman used are another question entirely.

I would guess that the second generation progeny harvested from the first generation progeny will be ruled as protected due to one unique aspect of this particular case. Mr. Bowman's application of Roundup to his planted crop of "undifferentiated" seeds ensured that the only plants that survived would be the ones carrying the protected Roundup Ready (RR) gene. In effect, the selection process triggered by the application of Roundup caused a new instance of protected GMO to be produced.

I'm hoping that the first generation progeny is covered by exhaustion, because any other ruling will create a level of patent protection that will affect us in ways we can only guess at right now.

If you happen to find this subject interesting, I recommend the documentary, King Corn. It's basically about a couple post-college guys who set out to grow an acre of corn in Iowa. If you even wondered how messed up our food system is in the US, well, Monsanto and plant patents just scratch the surface. There's decades of bad policy in there as well that has helped get us here. SCOTUS might have a hard time justifying undoing the work of the USDA and FDA.

Remember, if farmers' costs to produce your food go up, your food costs go up. Farmers have to make a living, too, and farm equipment isn't cheap. My dad works as a warranty writer and deals with equipment that can easily cost quarter of a million dollars.

Also remember: A farmer is not going to use a product unless it makes him a net profit, be that GMO or pesticides. They're very smart, evidence-oriented people.

The fact that Roundup Ready crops were so quickly and widely adopted tells just how much benefit farmers got from them.